THANH TAN PHUNG v. ASHLEY HART

316 Ga. 361

• Court: Supreme Court of Georgia
• Decided: May 2, 2023
• Docket: S22C1238
• Status: Published

Opinion

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

SUPREME COURT OF GEORGIA Case No. S22C1238

May 02, 2023

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

THANH TAN PHUNG et al. v. ASHLEY HART.

The Supreme Court today denied the petition for certiorari in

this case.

All the Justices concur.

Court of Appeals Case No. A22A0528

SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta

I certify that the above is a true extract from the minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk BETHEL, Justice, concurring.

Because the standard for certiorari review requires more than

mere error correction, I concur in the Court’s denial of certiorari in

this case. But I write separately to express my grave concern that

the Court of Appeals’ mischaracterization of the record here likely

resulted in the erroneous disposition of an enumeration.

This personal injury case involves claims for negligence

stemming from an automobile collision with a pedestrian. Ashley

Hart, the plaintiff in the underlying suit, was in a lane of traffic on

a highway and not in a designated crosswalk or at a marked

intersection. One of the critical considerations in the case is the

question of whether the driver of the automobile, Thanh Tan Phung,

saw Hart prior to the collision. There appears to be no question that

Phung saw a second pedestrian – a man waving in the right lane.

The trial court granted summary judgment to Phung, concluding

that Hart had failed to provide evidence that “Phung was negligent

or failed to exercise due diligence.” The Court of Appeals, upon

review of the record, reversed and in doing so determined that

2 Phung’s deposition created a genuine issue of material fact

concerning whether Phung saw Hart prior to the impact and could

have stopped in time. The Court of Appeals relied on Phung’s

testimony that he could have stopped in time to avoid hitting the

other pedestrian that he avoided – a man waving in the right lane –

by switching to the left lane, and his statement that “I was in the

right lane when I saw them.” (Emphasis supplied.) See Hart v.

Phung, 364 Ga. App. 399, 401, 407 (876 SE2d 1) (2022).

But, in context, Phung’s use of the plural “them” cannot

reasonably be read to indicate that Phung saw Hart prior to the

impact. In his deposition, Phung describes seeing “someone waving

right in my lane,” causing him to “merge into the left lane” where he

then ran over “something” a few seconds later. There is no apparent

dispute that the person waving in the lane was the other pedestrian

and most certainly was not Hart. The “something” Phung struck,

sadly, appears to have been Hart, who was possibly lying down in

the left lane of Highway 92. Phung unequivocally and consistently

states numerous times throughout his deposition that he never saw

3 Hart in the lane before the impact. And it is Plaintiff’s counsel that

repeatedly referred to the man waving in the plural – mentioning

“their clothes, their face, their hands,” and asking “how far were you

from the person that was in your lane [ie, the man waving] when

you first noticed them do you think?” Phung and Hart’s counsel

discuss the man waving, and then after some back-and-forth, Phung

states “I was in the right lane when I saw them.” (Emphasis added.)

That Phung similarly responds in the plural when discussing the

man waving in the lane does not change the meaning of his response

that is clear from context. Phung was indicating when he saw the

waving man, not that he saw both the waving man and Hart. The

Court of Appeals’ use of this response, out of context and in isolation,

to overturn the trial court’s grant of summary judgment appears to

be clearly erroneous.

Nevertheless, because the opinion of the Court of Appeals does

not incorrectly state the law but merely incorrectly applies it to the

record in a way not apparent on the face of the opinion, I agree that

the issue here lacks gravity and the case is not one of great import

4 to the public. Thus, I concur in the denial of certiorari, though I

admonish the Court of Appeals to exercise greater care in its review

of the records it reviews.

I am authorized to state that Chief Justice Boggs and Justices

Warren and LaGrua join in this concurrence.